State of Washington, et al v. Donald J. Trump, et al

Filing 190

Filed Order for PUBLICATION (WILLIAM C. CANBY, RICHARD R. CLIFTON and MICHELLE T. FRIEDLAND) (Concurrence by Judge Reinhardt, Dissent by Judge Bybee) This court in a published order previously denied a motion of the government for a stay of a restraining order pending appeal. 847 F.3d 1151 (9th Cir. 2017). That order became moot when this court granted the government's unopposed motion to dismiss its underlying appeal. Order, Mar. 8, 2017. No party has moved to vacate the published order. A judge of this court called for a vote to determine whether the court should grant en banc reconsideration in order to vacate the published order denying the stay. The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration. Vacatur of the stay order is denied. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, (1994) (holding that the "extraordinary remedy of vacatur" is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party). This order is being filed along with the concurrence of Judge Reinhardt and the dissent of Judge Bybee. Filings by other judges may follow. [10358462] (RMM) [Entered: 03/15/2017 05:36 PM]

Case: 17-35105, 03/15/2017, ID: 10358462, DktEntry: 190-1, Page 1 of 1

FILED
Washington v. Trump, No. 17-35105

MAR 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

REINHARDT, J., concurring in the denial of en banc rehearing:

I concur in our court’s decision regarding President Trump’s first Executive
Order – the ban on immigrants and visitors from seven Muslim countries. I also
concur in our court’s determination to stand by that decision, despite the effort of a
small number of our members to overturn or vacate it. Finally, I am proud to be a
part of this court and a judicial system that is independent and courageous, and that
vigorously protects the constitutional rights of all, regardless of the source of any
efforts to weaken or diminish them.